Gauhati High Court
Page No.# 1/5 vs Shri Dipankar Kalita on 24 November, 2025
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/5
GAHC010224192024
2025:GAU-AS:15958
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/422/2024
THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY GOVT. OF
ASSAM PERSONNEL (A) DEPARTMENT ASSAM SECRETARIAT COMPLEX
DISPUR, GUWAHATI -781006 ASSAM
2: THE SECRETARY
GOVT. OF ASSAM
PERSONNEL (A) DEPARTMENT SECRETARIAT COMPLEX
DISPUR
GUWAHAT781006
ASSAM.
3: THE JOINT SECRETARY
GOVT. OF ASSAM
PERSONNEL (A) DEPARTMENT
SECRETARIAT COMPLEX
DISPUR
GUWAHATI-781006
ASSAM
4: THE DISTRICT COMMISSIONER
KAMRUP
AMINGAON
GUWAHATI-781039
VERSUS
SHRI DIPANKAR KALITA
S/O. LATE SURENDRA CH. KALITA,
HOUSE NO. 31, HENGRABARI ROAD,
FOREST GATE, NAMGHAR PATH,
DISPUR, ASSAM, SACHIVALAYA,
GHY-6, DIST.-KAMRUP(M), ASSAM.
Page No.# 2/5
BEFORE
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MRS. JUSTICE MITALI THAKURIA
For the appellants : Mr. D. Nath, Sr. Govt. Adv.
For the respondent : Mr. M. Sarma, Adv.
Date of hearing : 24.11.2025
Date of judgment : 24.11.2025
Judgment & order (ORAL)
(M. Zothankhuma, J)
1. Heard Mr. D. Nath, learned Senior Government Advocate for the appellants
State and Mr. M. Sarma, learned counsel for the sole respondent.
2. The appellants have put to challenge the impugned judgment and order
dated 08.05.2024, passed by the learned Single Judge in WP(C) 1467/2024,
wherein the suspension of the petitioner has been set aside, on the ground that
no order for extension or review of the suspension order had been passed by
the State appellants, prior to the expiry of three months' period after the initial
suspension order had been issued. The learned Single Judge thus held that the
order of extension of the suspension, subsequent to the expiry of three months
from the date of taking effect of the suspension order, would not cure the defect
of not having undertaken a review for continuing the suspension order. The
above decision had been made in terms of the judgment of the Supreme Court
in the case of Ajay Kumar Choudhary vs. Union of India and others,
reported in (2015) 7 SCC 291 and the decision of the Division Bench of this
Court in Rakibuddin Ahmed vs. State of Assam and Others, reported in
2019 (5) GLT 600, which was in relation to a case of deemed suspension
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under Rule 6(2) of the Assam Services (Discipline and Appeal) Rules, 1964.
3. The counsel for the appellants submits that the departmental proceeding is
going to be concluded within three weeks and if the impugned judgment and
order is to be implemented, the same would cause great problems to the
appellants, as the appellants have been charged with accepting a bribe. The
counsel for the appellants thus submits that the direction to the appellants, to
reinstate the respondent, should be set aside.
4. The counsel for the appellants further submits that the fact situation in
Ajay Kumar Choudhary (supra) is different from the present case, in view of
the fact that in Ajay Kumar Choudhary (supra), memorandum of
charge/charge sheet had not been submitted for a number of years. However, in
the present case, charge sheet/memorandum of charge had been submitted a
few days after the expiry of the 90 days validity period of the suspension order.
5. Mr. M. Sarma, learned counsel for the respondent, on the other hand,
submits that para 22 of Ajay Kumar Choudhary (supra) makes it amply clear
that a memorandum of charge/charge sheet would have to be filed within three
months, to be counted from the date of issuance/coming into force of the
suspension order or else, the suspension order loses its validity/force. However,
if a review is undertaken prior to the expiry of the three months and an order
for extension of the suspension order is issued, the effect of a suspension order
can be extended. He also submits that in a case where a memorandum of
charge/charge sheet is submitted within three months, then also a reasoned
decision is to be taken by the respondents, for extension of the suspension
period.
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6. We have heard the learned counsels for the parties.
7. The relevant portion of the decision of the Supreme Court in Ajay Kumar
Choudhary (supra) states as follows:-
"It will be useful to recall that prior to 1973 an accused could be detained for
continuous and consecutive periods of 15 days, albeit, after judicial scrutiny and
supervision. The Cr.P.C. of 1973 contains a new proviso which has the effect of
circumscribing the power of the Magistrate to authorize detention of an accused
person beyond period of 90 days where the investigation relates to an offence
punishable with death, imprisonment for life or imprisonment for a term of not less
than 10 years, and beyond a period of 60 days where the investigation relates to any
other offence. Drawing support from the observations contained of the Division Bench
in Raghubir Singh vs. State of Bihar, 1986 (4) SCC 481, and more so of the
Constitution Bench in Antulay, we are spurred to extrapolate the quintessence of the
proviso of Section 167(2) of the Cr.P.C. 1973 to moderate Suspension Orders in cases
of departmental/disciplinary inquiries also. It seems to us that if Parliament considered
it necessary that a person be released from incarceration after the expiry of 90 days
even though accused of commission of the most heinous crimes, a fortiori suspension
should not be continued after the expiry of the similar period especially when a
Memorandum of Charges/Chargesheet has not been served on the suspended person.
It is true that the proviso to Section 167(2) Cr.P.C. postulates personal freedom, but
respect and preservation of human dignity as well as the right to a speedy trial should
also be placed on the same pedestal.
We, therefore, direct that the currency of a Suspension Order should not extend
beyond three months if within this period the Memorandum of Charges/Chargesheet is
not served on the delinquent officer/employee; if the Memorandum of
Charges/Chargesheet is served a reasoned order must be passed for the extension of
the suspension. As in the case in hand, the Government is free to transfer the
concerned person to any Department in any of its offices within or outside the State so
as to sever any local or personal contact that he may have and which he may misuse
for obstructing the investigation against him. The Government may also prohibit him
from contacting any person, or handling records and documents till the stage of his
having to prepare his defence. We think this will adequately safeguard the universally
recognized principle of human dignity and the right to a speedy trial and shall also
preserve the interest of the Government in the prosecution."
8. In the case of Union of India and others vs. Dipak Mali, reported in
(2010) 2 SCC 222, the Supreme Court, while considering Rule 10 of the
CCS(CCA) Rules, 1965, held that the review, for modification or revocation of a
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suspension order, was required to be done before the expiry of 90 days from the
date of order of suspension and that the order of suspension made or deemed,
would not be valid after a period of 90 days, unless it was extended after review
for a further period of 90 days. It also held that a suspension order would
become invalid after 90 days, unless there is a review or extension of the same
within 90 days from the date of the suspension order.
9. A bare perusal of the above clearly shows that memorandum of
charge/charge sheet has to be filed within three months, to be counted from
the date the suspension order was issued or takes effect. If within the said
three months, charge sheet is filed, then also a reasoned order has to be given
for continuance of the suspension order. If a charge sheet is not filed within
three months, the respondents would have to undertake a review, for
continuance of the suspension order, before expiry of 90 days, from the date of
issue/coming into force of the suspension order.
10. On considering the law laid down in Ajay Kumar Choudhary (supra),
Dipak Mali (supra) and Rakibuddin Ahmed (supra), we do not find any
ground to take a different view from the view taken by the learned Single
Judge. Accordingly, the writ appeal stands dismissed.
JUDGE JUDGE
Comparing Assistant
